Contract Terms Study (List 3)

Section

Question

Answer

Summary Judgement

Judgment rendered by a court in response to a motion made by one of the parties, claiming that the lack of a question of material fact in respect to an issue warrants disposition of the issue without consideration by a jury

Rejection

The refusal to accept the terms of an offer

Shrinkwrap license

Terms of restriction packaged inside a product

RICO

Racketeer Influenced and Corrupt Organizations Act

Battle of Forms

Refers to the exchange of forms pursuant to a contract for the sale of goods between a buyer and a seller

Parol Evidence Rule

Doctrine precluding parties to an agreement from introducing evidence of prior or contemporaneous agreements in order to repudiate or alter the terms of a written contract.

Contemporanouesly

At the same time

Replevin

an action to recover personal property wrongfully taken

Extrinsic Evidence

Evidence that is not contained within the test of a document or contract but is derived from the the parties statements or the circumstances under which the agreement was made.

Four Corners

The express terms of a written document

Under enforcement

the failure of the legal system to enforce a legitimate exercise of assent

Over enforcement

the erroneous enforcement of an alleged exercise of assent that in fact never occurred.

Quantum Meruit

Equitable Doctrine allowing recovery for labor and materials provided by one party even though no contract was entered into, in order to avoid unjust enrichment by the benefitted party.

Expectation Damages

Damages awarded in actions for non-performance of a contract which are calculated by subtracting the injured parties actual dollar position as a result of the breach from that party’s expected dollar position had the breach not occurred.

Part performance

Partial performance of a contract, promise or obligation

Estoppel

An equitable doctrine precluding a party from asserting a right to the detriment of another, who justifiably relied on the conduct.

Assignment

A transaction in which a party conveys his or her entire interest in a property to another.

Adequate Assurances

Refers to a situation in which one party is excused from performance of his obligations under a contract f the other party to the contract indicates that he does not intend to perform when the time for performance thereunder arrives; the non-breaching party in that case is excused from further performance unless he receives adequate assurances that performance will be rendered.

Obligee

Promisee; a party who is the recipient of a promise or obligation to perform

Dismissal with Prejudice

A final determination of an action without trial on the merits and prohibiting the parties from brining the same action at a later date.

Foreclosure Sale

Termination of an interest in a property, unusually initiated by a lienholder upon failure to tender mortgage payments, resulting in the sale of the property in order to satisfy the debt.

Agent

An individual who has the authority to act on behalf of another.

Principal

A person or entity who authorizes another, the agent,, to act on it’s behalf and subject to it’s authority to the extent that the principal may be held liable for the actions of the agent.

Judgment N.O.V

A judgement entered by a trial judge reversing a jury verdict if the jury;s determination has no basis in law or fact.

Actual Authority

exists when the principal, expressly or implicitly, gives the agent power to act.

Inherent Authority

arises solely from the principals designation that a particular type of agent ordinarily possesses certain powers.

Apparent Authority

arises when a principal acts in such a manner as to convey the impression to a third party that an agent has certain power which the agent may or may not actually possess.

Donee beneficiary

A third party, not a party to a contract but for whose benefit the contract is entered with the intention that the benefits derived therefrom be bestowed on the persona as a gift.

Intended beneficiary

A third party who is the recipient of the benefit of a transaction undertaken by another.

Third –Party beneficiary

A party who benefits from the promise made pursuant to contract even though he is not a party to the agreement.

Creditor Beneficiary

A creditor who received the benefits of a contract between a debtor and another party, pursuant to which the other party is obligated to tender payment to the creditor.

Consequential Damages

Monetary compensation that may be recovered in order to compensate for injuries or losess sustained as a result of damages that are not the direct or foreseeable result or act of the party, but that nevertheless are the consequence of such act which must be specifically pled and demonstrated.

Cure

In a commercial transaction, the seller has the right to correct a delivery of defective goods within the time originally provided for performance as specified in the contract.

Remittitur

A ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damage granted by a jury in a civil case. Usually this is because the amount awarded exceeds the amount demanded.

Expectation Damages

Damages awarded actions for non-performance of a contract, which are calculated by subtracting the injured party’s actual dollar position as a result of the breach from the party’s expected dollar position had the breach not occurred.

Reliance Damages

The injury suffered by a party to a breached contract as the result of that party’s dependence on the agreement.

Lost Profits

The potential value of income earned or goods which are the subject of the contract; may be used in calculating damages where the contract has been breached.

Executory Contract

A contract in which performance of an obligation has yet to be rendered.

Repudiation

The actions or statements of a party to a contract that evidence his intent not to perform, or to continue performance of, his duties and obligations thereunder.

Liquidated Damages

An amount of money specified in a contract representing the damages owed in the event of a breach.

The measure of damages for a failure to deliver goods is the amount advanced to the buyer, plus interest. ***look to make aggrieved party whole, avoid unjust enrichment

Implied Contract

An agreement between parties that may be inferred from their general course of conduct.

Promissory Estoppel

A promise that is enforceable fi the promisor should reasonably expect that si will induce action or forbearance on the part of the promissee, and does in fact cause such an action or forbearance, and it is the only means of avoiding injustice.

memorize

Delegation :The authorization of one person to act on another’s behalf.